Citation Nr: 0837633
Decision Date: 10/31/08 Archive Date: 11/10/08
DOCKET NO. 07-03 934 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss disability.
2. Entitlement to service connection for residuals of
exposure to carbon tetrachloride, claimed as breathing,
neurological, and sleep disorders.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant, Spouse
ATTORNEY FOR THE BOARD
M. Scott Walker, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1943 to October
1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Seattle Washington. The veteran's claims file has been
transferred to the RO in Portland, Oregon.
The August 2005 rating decision denied entitlement service
connection for bilateral hearing loss disability and
residuals of carbon tetrachloride exposure.
The veteran was afforded a Board hearing, held by the
undersigned, in September 2008. A copy of the transcript has
been associated with the record.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The issue of entitlement to service connection for residuals
of exposure to carbon tetrachloride is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDING OF FACT
The preponderance of the evidence is against a finding that
the veteran's hearing loss disability was manifest during
service, was manifest within one year of separation, or that
any current hearing loss disability is attributable to
service.
CONCLUSION OF LAW
A hearing loss disability was not incurred in or aggravated
by service and may not be presumed to have been incurred or
aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309
(2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board has thoroughly reviewed all the evidence in the
veteran's claims file. Although the Board has an obligation
to provide reasons and bases supporting this decision, there
is no need to discuss, in detail, the evidence submitted by
the veteran or on his behalf. See Gonzales v. West, 218 F.3d
1378, 1380-81 (Fed. Cir. 2000) (the Board must review the
entire record, but does not have to discuss each piece of
evidence). The analysis below focuses on the most salient
and relevant evidence and on what this evidence shows, or
fails to show, on the claim(S). The veteran must not assume
that the Board has overlooked pieces of evidence that are not
explicitly discussed herein. See Timberlake v. Gober, 14
Vet. App. 122 (2000) (the law requires only that the Board
address its reasons for rejecting evidence favorable to the
veteran).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I. The Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the veteran's claim of entitlement to service
connection for bilateral hearing loss disability, VA has met
all statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326 (2008).
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. See 38 U.S.C.A. § 5103(a) (West
2002); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi,
16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet.
App. 112, 120-21 (2004) (Pelegrini II), the Court held that
VA must inform the claimant of any information and evidence
not of record (1) that is necessary to substantiate the
claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) request that the
claimant provide any evidence in his possession that pertains
to the claim.
Prior to the initial adjudication of the veteran's claim, a
letter dated in November 2004 satisfied the duty to notify
provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R.
§ 3.159(b)(1) (2008); Quartuccio, at 187. The Board notes
that 38 C.F.R. § 3.159 was recently revised, effective as of
May 30, 2008, and several portions of the revisions are
pertinent to the claim at issue. See 73 Fed. Reg. 23,353-
23,356 (April 30, 2008). Notably, the final rule removes the
third sentence of 38 C.F.R. § 3.159(b)(1), which had stated
that VA will request the claimant to provide any evidence in
the claimant's possession that pertains to the claim.
Despite this change in the regulation, the aforementioned
notice letter informed the veteran that it was ultimately his
responsibility to give VA any evidence pertaining to the
claims and to provide any relevant evidence in his
possession. See Pelegrini II, at 120-21.
An August 2008 letter informed the veteran of the manner in
which VA assigns initial ratings and effective dates. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Board also concludes VA's duty to assist has been
satisfied. The veteran's service treatment records and VA
medical records are in the file. The veteran has at no time
referenced outstanding records that he wanted VA to obtain or
that he felt were relevant to the claim.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim, as defined by law.
See Green v. Derwinski, 1 Vet. App. 121 (1991). With regard
to the veteran's claim for entitlement to service connection
for bilateral hearing loss disability, the veteran was
afforded a VA audiological examination in July 2005 to obtain
an opinion as to whether his alleged bilateral hearing
disorder could be directly attributed to service. Further
examination or opinion is not needed on the claim because, at
a minimum, there is no persuasive and competent evidence that
the claimed condition may be associated with the veteran's
military service. The July 2005 VA examination report is
thorough and supported by the record. The examination in
this case is adequate upon which to base a decision.
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
II. Service connection
The veteran claimed that acoustic trauma, caused by airplane
engines, is one of the reasons why he suffers from bilateral
hearing loss. According to the veteran, electronic super
chargers on B-24 bombers required constant adjustment, and
that to make the adjustment, the engine had to have been
running.
In order to establish service connection for a claimed
disability, the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein.
See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§§ 3.303, 3.304 (2008).
Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. See 38 C.F.R. § 3.303(d) (2008). In
addition, certain chronic diseases may be presumed to have
been incurred or aggravated during service if they become
disabling to a compensable degree within one year of
separation from active duty. See 38 U.S.C.A. §§ 1101, 1112
(West 2002); 38 C.F.R. §§ 3.307, 3.309 (2008).
The Court held that, in order to prevail on the issue of
service connection on the merits, there must be medical
evidence of (1) a current disability; (2) medical, or in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in-service disease or
injury and the present disease or injury. See Hickson v.
West, 12 Vet. App. 247, 253 (1999).
The Board may not base a decision on its own unsubstantiated
medical conclusions but, rather, may reach a medical
conclusion only on the basis of independent medical evidence
in the record. See Hensley v. Brown, 5 Vet. App. 155 (1993).
Neither the Board nor the veteran is competent to supplement
the record with unsubstantiated medical conclusions. See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
Conversely, health professionals are experts and are presumed
to know the requirements applicable to their practice and to
have taken them into account in providing a diagnosis.
Hearing loss disability is defined by regulation. For the
purposes of applying the laws administered by VA, impaired
hearing will be considered to be a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
The Court has held that "the threshold for normal hearing is
from 0 to 20 dB [decibels], and higher threshold levels
indicate some degree of hearing loss." See Hensley v.
Brown, 5 Vet. App. 155, 157 (1993).
Organic disease of the nervous system such as sensorineural
hearing loss will be presumed to have been incurred in or
aggravated by service if it had become manifest to a degree
of 10 percent or more within one year of the veteran's
separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is
rebuttable by affirmative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
At the outset, the Board notes that the veteran has been
diagnosed with a bilateral hearing loss disability. See VA
examination report, July 21, 2005. Thus, element (1) of
Hickson has been satisfied.
Turning to the question of in-service disease or injury, the
Board notes that the veteran's service medical records are
negative for any complaints, treatment, or diagnosis of
bilateral hearing loss. Upon the veteran's entry into
service, hearing was 15/15, bilaterally, via whispered voice
test. See service induction examination report, June 10,
1943. Between the veteran's entrance and separation
examinations, his service medical records are negative for
complaints, treatment, or diagnosis of hearing loss (or any
other auditory disorder). Upon separation, the veteran's
hearing was, once again, recorded as 15/15 per whispered
voice test. See Standard Forms (SF) 88, service separation
examination report, October 22, 1945.
In conjunction with his appeal, the veteran was afforded a VA
audiological examination for compensation purposes in July
2005. The examiner noted a review of the claims file.
According to the medical report, the veteran's military noise
exposure consisted of exposure to airplane noise without the
benefit of ear protection. Following service, the veteran
reported a history of occupational noise exposure, working
nine years in the timber industry, with some hearing
protection.
At the time of the examination, testing revealed that the
veteran's bilateral hearing loss met the level of disability
under 38 C.F.R. § 3.385. Puretone air and bone conduction
thresholds revealed hearing within normal limits through 1000
Hz, sloping to moderately severe sensorineural hearing loss
in higher frequencies, with good word recognition,
bilaterally (76 percent). The examiner opined that the
veteran's bilateral hearing loss disability was less likely
than not caused by, or the result of, the veteran's period of
active duty.
The only evidence of record in support of the veteran's claim
that his bilateral hearing loss disability is etiologically
related to service is his own lay statements. The United
States Court of Appeals for the Federal Circuit (Federal
Circuit) held that lay evidence is one type of evidence that
must be considered, and competent lay evidence can be
sufficient in and of itself. The Board, however, retains the
discretion to make credibility determinations and otherwise
weigh the evidence submitted, including lay evidence. See
Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
This would include weighing the absence of contemporary
medical evidence against lay statements.
In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007),
the Federal Circuit determined that lay evidence can be
competent and sufficient to establish a diagnosis of a
condition when (1) a layperson is competent to identify the
medical condition (noting that sometimes the layperson will
be competent to identify the condition where the condition is
simple, for example a broken leg, and sometimes not, for
example, a form of cancer), (2) the layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis by
a medical professional. The relevance of lay evidence is not
limited to the third situation, but extends to the first two
as well. Whether lay evidence is competent and sufficient in
a particular case is a factual issue.
Once evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno
v. Brown, 6 Vet.App. 465, 470 (1992) (distinguishing between
competency ("a legal concept determining whether testimony
may be heard and considered") and credibility ("a factual
determination going to the probative value of the evidence to
be made after the evidence has been admitted")). See Barr
v. Nicholson, 21 Vet. App. 303 (2007).
In this case, the veteran can attest to factual matters of
which he had first-hand knowledge, such as in-service noise
exposure. See Washington v. Nicholson, 19 Vet. App. 362, 368
(2005). However, the veteran as a lay person has not been
shown to be capable of making medical conclusions, thus, his
statements regarding causation are not competent. See
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). He is
not competent to establish an etiological nexus between his
current diagnosis and his exposure to noise during his period
of active duty.
With regard to the decades-long evidentiary gap in this case
between active service and the veteran's earliest complaints,
the Board notes that this absence of evidence constitutes
negative evidence tending to disprove the claim that the
veteran had an injury or disease in service which resulted in
chronic disability or persistent symptoms thereafter. See
Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.
Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002)
(noting that the definition of evidence encompasses
"negative evidence" which tends to disprove the existence
of an alleged fact); see also 38 C.F.R. § 3.102 (noting that
reasonable doubt exists because of an approximate balance of
positive and "negative" evidence). Thus, the lack of any
objective evidence of continuing auditory complaints,
symptoms, or findings for approximately 50 years between the
period of active duty and his claim for service connection is
itself evidence which tends to show that this disorder did
not have its onset in service or for many years thereafter.
A prolonged period without medical complaint can be
considered, along with other factors concerning a claimant's
health and medical treatment during and after military
service, as evidence of whether an injury or a disease was
incurred in service which resulted in any chronic or
persistent disability. See Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000). The Board must consider all the
evidence including the availability of medical records, the
nature and course of the disease or disability, the amount of
time that elapsed since military service, and any other
relevant facts in considering a claim for service connection.
Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir.
2000) (holding that the absence of medical records during
combat conditions does not establish absence of disability
and thus suggesting that the absence of medical evidence may
establish the absence of disability in other circumstances).
Thus, when appropriate, the Board may consider the absence of
evidence when engaging in a fact finding role. See Jordan v.
Principi, 17 Vet. App. 261 (2003).
As such, the Board finds the July 2005 VA medical opinion to
be the most probative evidence of record. The opinion was
detailed, consistent with other evidence of record, and
included a review of the claims file. See Prejean v. West,
13 Vet. App. 444, 448-9 (2000) (Factors for assessing the
probative value of a medical opinion are the physician's
access to the claims file and the thoroughness and detail of
the opinion.)
In sum, the competent evidence does not establish that
bilateral hearing loss disability began in service. There
are no records of any complaints, findings, treatment, or
diagnosis of hearing loss, or any other audiological
disorder, for approximately five decades after separation.
This significant lapse of time is highly probative evidence
against the veteran's claim of a nexus between a current
diagnosis of tinnitus and active military service. See
Maxson, supra. Despite the veteran's contentions that he has
had these symptoms since service, there is no medical
evidence of continuity of symptomatology and the probative
evidence weighs against the claim.
Accordingly, the Board finds that the most probative evidence
of record establishes that the veteran's bilateral hearing
loss disability is not related to his period of service. The
evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations. See 38 U.S.C.A.
§ 5107(b) (West 2002); 38 C.F.R. § 3.102 (2008). The
preponderance is against the veteran's claim, and therefore
his claim for service connection must be denied.
ORDER
Entitlement to service connection for bilateral hearing loss
disability is denied.
REMAND
At his hearing before the Board, the veteran testified that
he was exposed to carbon tetrachloride, while maintaining
aircraft during his period of active duty, and that the
exposure led to pulmonary, neurological, and sleep disorders.
While the veteran's record does not document exposure to
carbon tetrachloride in service, service department records
confirm that he was airplane electrical mechanic and that his
duties included cleaning and replacing electric motors,
ignitions systems, and recognition and landing lights. The
Board finds that his claimed exposure to carbon tetrachloride
was plausible under these circumstances. What remains to be
determined is whether there is medical evidence of a nexus
between current disability and the in-service exposure to
carbon tetrachloride.
In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006),
the Court held that VA must provide a medical examination in
a service connection claim when there is (1) competent
evidence of a current disability or persistent or recurrent
symptoms of a disability, and (2) evidence establishing that
an event, injury, or disease occurred in service or
establishing certain diseases manifesting during an
applicable presumptive period for which the claimant
qualifies, and (3) an indication that the disability or
persistent or recurrent symptoms of a disability may be
associated with the veteran's service or with another
service-connected disability, but (4) insufficient competent
medical evidence on file for the VA to make a decision on the
claim.
The Board notes that the veteran has been diagnosed with
nocturnal dyspnea, of an unknown cause. See Good Samaritan
Hospital and Medical Center treatment records, June 9-11,
1981. In December 1996, it was noted that the veteran had a
long history of a sleep disorder. See Good Samaritan
Hospital and Medical Center treatment records, December 1996.
VA outpatient reports further note a long history of
pulmonary and neurological disorders. A VA outpatient report
from January 18, 2005, noted that the veteran suffered from
disorders related to inservice exposure to carbon
tetrachloride. However, the examiner did not describe the
specific neurological impairment and recommended that a
compensation and pension examination be conducted.
Similarly, in January 2006, a VA treatment report noted
exposure to carbon tetrachloride, with neurological and
breathing problems; however, no particular neurological or
respiratory disability associated with carbon tetrachloride
exposure was identified.
In light of the foregoing, the Board must remand the
veteran's claim in order to obtain an opinion as to the
etiology of any current pulmonary, sleep, or neurological
disorder.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2007). Expedited
handling is requested.)
1. The RO should arrange for the
veteran to be scheduled for a VA
examination or examinations to
determine the nature and etiology of
any current pulmonary, sleep, or
neurological disorder(s). The claims
folder must be made available to the
examiner for review for the examination
and the examination report must
indicate whether such review was
accomplished. After examination and
review of the claims folder, the
examiner should address the following:
a) Identify all current pulmonary,
sleep, and/or neurological
disorders.
b) As to each diagnosed disorder,
indicate whether it is at least
as likely as not that any current
disorder(s) is/are etiologically
related to the veteran's period
of active service, to include
exposure to carbon tetrachloride.
The claims file must be made available to the
examiner(s) and the examiner(s) should
indicate in his/his report whether or not the
claims file was reviewed. A rationale for
any opinion expressed should be provided.
Note: The term "at least as likely as
not" does not mean merely within the
realm of medical possibility, but rather
that the weight of medical evidence both
for and against a conclusion is so evenly
divided that it is as medically sound to
find in favor of causation as it is to
find against it.
2. The AMC should then readjudicate the
claims for in light of all of the
evidence of record on the merits. If any
issue remains denied, the veteran and his
representative should be provided with a
supplemental statement of the case as to
the issues on appeal, and afforded a
reasonable period of time within which to
respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
DAVID L. WIGHT
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs